INSURERS: BREACH OF WARRANTY BY CLAIMANT SOLICITORS & REQUEST FOR INFORMATION
In many posts I have criticised the conduct of insurance companies in personal injury work in writing direct to clients, after solicitors have contacted the insurance company, asking those clients if they have in fact instructed those solicitors and offering to settle the matter direct.
I stand by those criticisms insofar as insurers are offering to settle the matter direct, but it is clear from the number and range of those acting for defendants who have contacted me that there are many instances of solicitors writing to insurers when they have not been instructed.
This seems normally to happen because of dubious relationships between some claimant solicitors and referrers.
One of my own clients showed me a letter from a firm of a personal injury solicitors purporting to act for my client when my client had never heard of them, let alone met them or spoke to them. My client’s son worked for my firm as an assistant solicitor.
I have today posted a blog – SOLICITOR’S BREACH OF WARRANTY: IMPORTANT CASE FOR INSURERS – which examines the decision in Zoya Ltd v Ahmed T/A Property Mart & Others  EWHC 2249 (Ch).
This is a reminder that if this happens the insurance company can sue the solicitor personally for breach of warranty, that is for wrongfully warranting that they act for the client.
The usual measure of damages is the costs incurred in dealing with such a case, but the court has power to award aggravated damages and in a case where the breach of warranty arises from systematic breach of the rules by obtaining cases from a referrer without contacting the client, then aggravated damages could, and should in my view, be awarded.
The solicitor is also potentially liable for wasted costs under Section 51 of the Senior Courts Act 1981 and under Section 67(2) of the Criminal Justice and Courts Act 2015 where the court makes a wasted costs order it must inform the approved regulator.
As well as giving this advice this post is a plea to insurance companies, compensators and those acting for them to let me have information about any cases where claimant solicitors have written to insurers claiming to act when in fact they have not been instructed.
This can be on a confidential basis, or with the view to me writing about specific cases.
It is in the interests of all decent solicitors and insurers, and the vast majority are, to clean up the personal injury stable and those solicitors who wrongly claim to be acting for a party deserve to have the book thrown at them.
So help please!
I can be contacted by email on firstname.lastname@example.org or 01442 430 900, or you can post a reply to this blog.
Please see my related blog:-